2016 QCCQ 8774, 2016 QCCQ 8774

8048509 Canada inc. c. 9093-4480 Québec inc. 2016 QCCQ 8774 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-145638-153 DATE: June 7, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ 8048509 CANADA INC.

Plaintiff v. 9093-4480 QUEBEC INC. and YURI SMUSHKEVITCH Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, a company of which the principals are Paranpreet Singh Padda and his wife Mandeep Kaur Padda sue the Defendant, a company of which the principal is Yuri Smushkevitch alleging a breach of warranty in connection with the sale of a used Freightliner Condo Truck year 2008. [ 2 ] The principal of 9093-4480 Québec Inc., Mr Yuri Smushkevitch, is also named as a Defendant.

The basis of the action is a conduct between the two companies; there is no allegation of personal liability on the part of Mr Smushkevitch. [ 3 ] The Truck was sold on July 21, 2014 for a price of $ 22,000. The sale document entitled “Bill of sale” (P-1) was signed by the parties in two versions. The first version states as the price “$ 22,000 only” and the second states “$ 22,000 plus tax”. Mr Padda explains that he accepted the change to the contract when the seller asked him to be responsible for the taxes. [ 4 ] In fact, he paid Quebec sale tax when he registered the vehicle.

He also admitted to the Court at the hearing that he would pay the GST, because he can claim it as an input credit. [ 5 ] The Cross-demand seeks payment of $ 1,100.

In fact, the document put in evidence shows that the Defendant paid $ 1,067.66 in GST. [ 6 ] The Cross-demand will therefore be maintained on the basis of Mr Padda’s admission and undertaking for the amount of $ 1,067.66. [ 7 ] Mr Padda’s claim is for $ 12,000 relating to costs paid to various mechanical shops that worked on the truck in the period shortly after the sale. [ 8 ] The document has a clause drafted as follows: “This truck is sold under the [sic] warranty of three months”.

The document was prepared for the Plaintiff by Mrs Padda and when it was presented for signature, a manuscript addition was made directly after these words: “no loan paperwork with it”. [ 9 ] The defence witnesses, Mr Yuri Smushkevitch and his son, Mr Vitaliy Korovyankiy, explained that they do not believe that they gave a warranty on the condition of the truck which was inspected by Mr Padda and his mechanic before the purchase. [ 10 ] They believe that the words “no loan paperwork with it” refers to their guarantee that there was no loan creating a real right over the truck that would be an encumbrance to the purchaser. [ 11 ] This statement is plausible because the purchaser admits that he did not verify the RDPRM registry; in fact he did not know such a registry exists.

He therefore would have needed a warranty of title. [ 12 ] The fact that the truck was manufactured in 2008 and had over a million kilometres of use also suggests that the vendor had no intention of giving a warranty as to the quality of the vehicle. [ 13 ] Much of the repair bills that are put in evidence by the Plaintiff related to a fuel management and a pollution control system known as “DPF”.

[ 14 ] Mr Yuri Smushkevitch, states that he had the “DPF” system disconnected at a substantial cost in order to improve the performance of the engine which did not work well with the “DPF” system in place. [ 15 ] The defence witnesses also stated that they informed Mr Padda that they had disconnected this system and he would have been able to see that for himself because a mechanic would obviously see signs of the system having been disconnected when he examined the vehicle.

The Court accepts the sincerity of this testimony. [ 16 ] The bills that are presented are for various types of maintenance and repairs that the Plaintiff alleged occurred shortly after the sale of the vehicle. Some of these invoices refer to this specific truck while others mention the licence plate but not the serial number of the truck. [ 17 ] It is difficult to distinguish in the bills what is for maintenance and what could be considered a condition that existed at the time of sale making the vehicle not fit for its purpose.

In one of the bills, for example, items are listed such as Fuel/Water separator, Scotseal Plus XL, Brake

part cleaner, Sleeper Balloon, Shell Detroit Oil Change. [ 18 ] In another bill dated November 21, 2014, in the amount of $ 3,236.09, the ECM is mentioned.

This is a component that apparently is related to the DPF. [ 19 ] This bill however is dated November 21, outside the alleged warranty of three months. [ 20 ] There is another bill relating to some service done on the 13 of April, 2014 but there is no charge. [ 21 ] The evidence concerning the malfunction of the vehicle is uncertain: there was no report submitted by a mechanic as to the actual state of the vehicle during the alleged warranty period and the testimonial evidence is simply of very little probative value as to whether the truck was in fact malfunctioning because a latent defect or was simply in need of routine repairs because of wear and tear. [ 22 ] The fact that this is a vehicle which, under normal circumstances, would be sold without warranty from one private party to another and the fact that there was some discussion about a warranty against defects of title make the evidence of a warranty of quality very weak and unconvincing, even though it is written evidence. [ 23 ] Even if the parties intended a warranty of quality, which is far from clear, the text is quiet vague and this lack of precision must be read against the party who drafted it, in this case the Plaintiff. [ 24 ] If, in fact, the Plaintiff did agree to a warranty about the quality of truck, perhaps it was only a warranty for very serious mechanical defects and not those relating to the maintenance that is required from time to time in the operation of a piece of heavy machinery such as this one. [ 25 ] The testimony that the Defendant gave to the effect that the purchaser had been informed that the DPF system had been disabled was not directly contradicted in the testimony of the Plaintiff.

It would appear that the Plaintiff accepted this aspect of the used truck as being normal. [ 26 ] On the whole, then, the Court comes to the conclusion that the Plaintiff has not fulfilled its burden of proving that there was an agreement between the parties as to a specific warranty nor that the repair and maintenance costs assumed related to defects that would be covered by such warranty. [ 27 ] The Defendant 9093-4480 Québec Inc., is however entitled to its Cross-demand for the GST payment that Plaintiff’s representative admitted owing.

FOR THESE REASONS, the Court : DISMISSES the Plaintiff’s action; CONDEMNS the Plaintiff to pay the Defendant 9093-4480 Québec Inc., as a GST payment, the amount of $ 1,067.66; CONDEMNS the Plaintiff to pay the Defendants’ judicial disbursements of $ 322.75. __________________________________ DAVID L. CAMERON, J.C.Q Date of hearing: February 8, 2016